Gill v Napranum Aboriginal Shire Council
[2025] QIRC 79
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- Unreported Judgment
- Gill v Napranum Aboriginal Shire Council[2025] QIRC 79
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Gill v Napranum Aboriginal Shire Council[2025] QIRC 79
Gill v Napranum Aboriginal Shire Council[2025] QIRC 79
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gill v Napranum Aboriginal Shire Council [2025] QIRC 079 |
PARTIES: | Gill, Tammy (Applicant) v Napranum Aboriginal Shire Council (Respondent) |
CASE NO.: | TD/2023/86 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 21 March 2025 |
MEMBER: | Power IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – DISMISSAL – APPLICATION FOR REINSTATEMENT – Application in existing proceedings brought by Respondent to dismiss application for reinstatement – whether the substantive matter should be dismissed because it is convenient to do so in all of the circumstances – whether the substantive matter should be dismissed on the basis that the proceedings are not necessary or desirable in the public interest – where there is a real question to be tried in the substantive matter – where it is in the public interest to allow the Applicant the opportunity to have the matter heard and determined – interlocutory application dismissed. |
LEGISLATION AND OTHER INSTRUMENTS: | Fair Work Act 2009 (Cth) Industrial Relations Act 2016 (Qld), s 316, s 320, s 322, s 451, s 541 Local Government Regulation 2012 (Qld), r 283 Public Sector Act 2022 (Qld), s 194 |
CASES: | Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Dziurek v A'Vard Industries Pty Ltd [2018] FWC 1091 Orchid Avenue Realty Pty Ltd v Percival [2003] ICQ 47 Queensland Police Union of Employees v HS First Inc. [2023] QIRC 030 Stewart v Creekgold Pty Ltd [2003] ICQ 39 Welsby v Artis Group Pty Ltd [2016] FWC 2251 |
Reasons for Decision
- [1]On 25 July 2023, Ms Tammy Gill ('the Applicant') filed an application for reinstatement following the termination of her employment at the Napranum Aboriginal Shire Council ('the Respondent') on 27 June 2023. The Application was filed on the basis that her dismissal was harsh, unjust, or unreasonable.
- [2]On 7 November 2024, the Respondents filed a 'Form 4 – Application in existing proceedings' seeking the following orders –
- Pursuant to section 451 of the Industrial Relations Act 2016 (Qld) (IR Act), orders that the application for reinstatement dated 17 July 2023 be summarily dismissed in its entirety because it is convenient to do so in all of the circumstances; or
- Pursuant to section 541(1)(b(ii) of the IR Act, an order that the application for reinstatement dated 17 July 2023, be summarily dismissed in its entirety on the basis that the proceedings are not necessary or desirable in the public interest.
- [3]The parties filed submissions and the Respondent's Application was heard on 31 January 2025.
Respondent's submissions
- [4]The Respondent submits that even if the Commission were to find that the termination of the Applicant's employment was unfair, which it denies, there is no prospect that the Commission would order the Council to reinstate or otherwise re-employ the Applicant nor that the Council pay compensation to the Applicant.
- [5]The Respondent contends that the Applicant's post-termination conduct destroyed the relationship of trust and confidence and as such a reinstatement order will not be made.
- [6]The Respondent filed an Affidavit of Mr Peter O'May dated 7 November 2024 stating the following –
a. Upon the Applicant's termination she was paid her accrued leave and wage entitlements, and an additional sum of $4,165.61 representing three weeks of her salary.
b. Following the termination, the Applicant damaged a Council laptop computer by throwing it at the ground. This resulted in the computer being damaged beyond repair. The QPS Bench Charge Sheet exhibited to the affidavit indicates that the Applicant was charged with wilful damage in relation to the conduct.
c. The Applicant entered a plea of guilty in relation to the charge in the Weipa Magistrates Court and was fined $500 and ordered to pay $700 restitution, as outlined by Inspector Rutherford in an email attached to the affidavit.
d. There is no record over the last 12 months of the $700 being paid by the Appellant.
e. The relationship of trust and confident between the Council and the Applicant which existed prior to termination of her employment has been damaged beyond repair by her conduct in wilfully destroying the Council's property, on council premises.
- [7]In relation to the remedy of compensation, the Respondent submits that any compensation ordered by the Commission would be subject to such a significant reduction on account of the Applicant's conduct that such an amount would be less than the amount already paid by way of the ex gratia payment to the Applicant upon termination.
- [8]The Respondent submits that in the alternative, the merits of the Applicant's application do not warrant a hearing on the basis that the Applicant has already received an ex gratia payment from the Council and her post-termination conduct ought to give the Commission a high degree of confidence that the Applicant engaged in the conduct which led to the termination of her employment and that Council acted reasonably in terminating the Applicant's employment.
- [9]
Applicant's submissions
- [10]The Applicant makes the following submissions, in summary –
- The Applicant opposes the Application and seeks to have the substantive application determined.
- The Applicant submits that the relationship of trust and confidence has not been damaged beyond repair as she has already been punished and was made accountable for her post-termination conduct.
- The Applicant acknowledges her admission before the Magistrates Court and contends that the order to pay restitution for her post-termination conduct has been complied with and regular payments have been made to the State Penalties Enforcement Registry ('SPER').
- The conduct involving the laptop computer was not the cause of her termination and is not relevant to the substantive application for reinstatement.
- The substantive application is not untenable, groundless, vexatious, or frivolous and it is not in the public interest for it to be dismissed.
- The Applicant was not terminated on the basis of serious misconduct.
- The post-termination conduct was the result of false allegations placed into the hands of the decision maker.
- The Respondent has made previous submissions that the application for declaratory relief in relation to r 283 of the Local Government Regulation 2012 ('LG Application') requires a hearing of the substantive application.
Respondent's submissions in reply
- [11]The Respondent's submissions in reply are summarised as follows –
- The Applicant's submission that the Council ought to be precluded from seeking summary dismissal because it previously submitted that the LG Application required a substantive hearing at the same time as hearing of the Application for Reinstatement is misconceived.
- The LG Application does not outline any relief sought other than a declaration that termination was 'nonvalid' presumably because an order for reinstatement is sought in the substantive Application. It follows that the LG Application will come to an end upon summary dismissal of the Application for Reinstatement.
- Whilst the letter of termination dated 27 June 2023 does not expressly identify the relevant conduct as being 'serious', the relevant conduct is plainly misconduct of a serious nature.
- The Applicant's attempts to blame the Council for her conduct in destroying the laptop computer and attempts to cast doubt over whether the laptop computer was in fact damaged by her conduct despite her guilty plea demonstrates that there is no prospect at all of reestablishing a relationship of mutual trust and confidence between the Applicant and the Council.
Legal framework
- [12]Section 316 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that a dismissal is unfair if it is harsh, unjust, or unreasonable.
- [13]Section 320 of the IR Act provides that in deciding whether a dismissal was harsh, unjust, or unreasonable, the Commission must consider the following:
320 Matters to be considered in deciding an application
- In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider—
- whether the employee was notified of the reason for dismissal; and
- whether the dismissal related to—
- the operational requirements of the employer's undertaking, establishment or service; or
- the employee's conduct, capacity or performance; and
- if the dismissal relates to the employee's conduct, capacity or performance—
- whether the employee had been warned about the conduct, capacity or performance; or
- whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
- any other matters the commission considers relevant.
…
- [14]A dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted. Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is acted.[3]
- [15]The Commission has the power to grant summary judgement where appropriate pursuant to s 451(1) and (2) of the IR Act.
- [16]The Commission also has power under s 541(b) of the IR Act to do as follows –
541 Decisions generally
The court or commission may, in an industrial cause do any of the following—
…
- dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
- the cause is trivial; or
- further proceedings by the court or commission are not necessary or desirable in the public interest;
Consideration
- [17]At the hearing of this application parties made additional submissions to the written submissions summarised above.
- [18]In further oral submissions the Respondent submitted that the requirements of the Applicant's employment contract, including obtaining a national police check, holding a blue card and a NDIS national work screening clearance lends further weight to the notion that having a high level of trust and confidence in the employee is a critical aspect of this occupation. The Applicant stated that a conviction was not recorded in the Magistrates Court, and she continues to hold a blue card, an NDIS clearance card and a clear police check, and continues to work in aged care.
- [19]The Respondent submits that there is no reasonable prospect of the Commission making an order for the Applicant's reinstatement or for the payment of compensation and on this basis, the Commission should exercise its power pursuant to s 451 of the IR Act to summarily dismiss the Application for Reinstatement, or alternatively to dismiss the substantive proceedings pursuant to s 541 on the basis that further proceedings in the matter are not necessary or desirable in the public interest.
- [20]The Council's submissions placed significant weight on the post-termination conduct of the Appellant. The Council submits that this conduct has resulted in the loss of any relationship of trust and confidence between the parties, thereby preventing any potential order for reinstatement. The material before the Commission, including the Appellant's admissions to the post-termination conduct along with the orders of the Magistrates Court and the affidavit of Mr O'May, lends weight to a determination that this conduct has damaged the relationship between the parties beyond repair. Whilst I note the evidence indicates at this stage that reinstatement may well be impracticable, further evidence would be required of the context surrounding the post-termination conduct along with the current employment environment before it could be determined that reinstatement or re-deployment was not an appropriate remedy. On the evidence before me at this stage however, such a remedy may reasonably be considered unlikely.
- [21]The other potential remedy relates to an order for compensation, which s 322(2)(a) of the IR Act limits to a maximum of 6 months of an employee's salary.
- [22]The Respondent contends that the amount of any compensation would inevitably be less than the amount already paid to the Applicant after consideration of her post-termination conduct and ex gratia payment at the time of her termination. The Respondent contends that any compensation which might otherwise have been ordered to be paid pursuant to s 322 of the IR Act would be subject to a significant reduction, in the magnitude of 100%.
- [23]The Respondent submits that where an employee's post-termination conduct is itself warranting of termination if employment had still been on foot, the employee's entitlement to compensation either comes to an end entirely or ought to be reduced by a proportion which represents the relative seriousness of the post-termination conduct.
- [24]The Respondent refers to Stewart v Creekgold Pty Ltd[4] in which President Hall made the following obiter remarks –
I accept that there will be cases in which an employee harshly, unjustly or unreasonably dismissed will not be able to claim that, in any event, he has lost his wages for the full period between dismissal and hearing. There will, for example, be causes in which the finding of harshness, unreasonableness or injustice is based on procedural matters whilst a serious and perhaps recently discovered subsequent ground for dismissal lurks in the background. This is not such a case.[5]
- [25]The Respondent also referred to a number of authorities from the federal jurisdiction considering the equivalent provisions in the Fair Work Act 2009. In Welsby v Artis Group Pty Ltd,[6] the Fair Work Commissioner determined that the post-termination misconduct warranted a discount of 60 per cent for the compensation otherwise payable to the employee. In Dziurek v A'Vard Industries Pty Ltd[7] the Deputy President considered that the post-termination conduct weighed against a finding that the dismissal was unfair. The Respondent does not submit that the Applicant's post-termination conduct should be taken into account in determining whether the dismissal was harsh, unjust, or unreasonable, rather that the post-termination conduct is a relevant consideration when determining remedy.
- [26]The nature of the post-termination actions in the cases referred to by the Respondent were, in my view, more serious than the Applicant's conduct in this matter, and involved intentional and deliberate misconduct. As submitted by the Respondent, the Applicant's conduct occurred "quite literally immediately after the meeting" in which she was dismissed, placing the behaviour in an entirely different context. There is insufficient evidence before the Commission at this stage to determine that the Applicant's post-termination conduct would have led to her dismissal. The limited authorities on this point, however, indicate that post-termination conduct may be considered as relevant to determinations of remedy pursuant to s 320(1)(d) of the IR Act.
- [27]I am not persuaded at this stage of the matter that an order of compensation could not exceed the amount that has already been paid after consideration of all the circumstances of the termination, the ex gratia payment, and the post-termination conduct. Whilst a reduction in compensation would likely be ordered, I am not satisfied that it would necessarily be discounted by 100% after consideration of the ex gratia payment and a further reduction for post-termination conduct.
- [28]To be clear, consideration of available remedies is on the basis that these remedies are available only if the Application for Reinstatement is successful. The onus remains upon the Applicant to demonstrate on the balance of probabilities that the dismissal was unfair, and the determination of this application is on the basis that if the Applicant were to discharge this onus, a remedy will be available.
- [29]I note the consideration in Orchid Avenue Realty Pty Ltd v Percival[8] in which President Hall stated the following –
I also accept that great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed Tribunal, compare General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ.[9]
- [30]In Queensland Police Union of Employees v HS First Inc.,[10] the Full Bench cited a number of High Court decisions relating to considerations of summary dismissal applications –
In Agar v Hyde, Guadron, McHugh, Gummow and Hayne JJ relevantly stated:
It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formula which have been used are intended to describe at high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
Similarly in Spencer v The Commonwealth, French CJ and Gummow J stated:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgement application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
"The power to order summary or final judgement is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".
Further, nowhere '… is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issues or issues of fact.'
These general law principles are a sound guide for the Commission, in respect of the exercise of the broad discretion given to the Commission in s 451(2)(b) and (c) of the IR Act to make a decision or an order '… it considers appropriate' when considering an application for summary judgement.
- [31]I also note the consideration of s 541 of the Act by Martin J in Campbell v State of Queensland (Department of Justice and Attorney-General)[11] in which he stated that due circumspection on a proper consideration of relevant materials must be exercised in these matters, as the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act.
- [32]I am not persuaded that the Application to dismiss the substantive application pursuant to s 451 or s 541 of the IR Act should be granted. It would not be appropriate to make an order under s 451 in circumstances where there is a real question to be tried. Neither would it be appropriate to make such an order under s 541 as it is in the public interest to allow the Applicant to opportunity to have her matter heard and determined in circumstances where I have considered that remedies are available.
- [33]The Respondent made submissions in the alternative that the Commission ought to have a high degree of confidence that the Applicant engaged in the conduct which led to the termination of her employment and the Council acted reasonably in terminating the Applicant's employment. The admitted post-termination conduct does not allow for such confidence at this stage of the proceedings on the basis that it differed significantly from the conduct upon which the termination decision was made by the Council. An examination of all the relevant evidence will be required at a full hearing in order for a determination to be made.
- [34]It is my view that a decision to dismiss the substantive proceedings would improperly deprive the Applicant of her opportunity to have the case tried before the Commission. It is not in the public interest to allow matters to proceed where there is no remedy that will practically be available, however, that is not the case in this matter. If the Applicant is successful, a remedy may be available in the form of reinstatement. However, should evidence demonstrate that reinstatement is impracticable, a remedy of compensation will be available noting the considerations to be had of payment already made and post‑termination conduct.
Orders
- [35]I make the following order:
- That the Respondent's application in existing proceedings be dismissed.